Arleigh Burke Essay Contest Winner A Crisis of Confidence

 

Military justice has reached a crossroads. Recent events, most notably the handling of the Tailhook controversy, have shaken con­fidence—both inside and outside the ser- yices—in the system’s ability to administer justice fairly. Strong leadership and a ^dedication to due process are essential 'uitial steps in regaining that confidence.

Long after the end of World War II, historians still discuss the significance of the failure of the mili­tary leadership to properly assess the warning signs of the Japanese attack on Pearl Harbor.¹ Today, the U.S. Navy is receiving signals of another potential disaster— this time in the military justice system. Certainly, such an event cannot compare to the horror of Pearl Harbor, but historians may find the naval leadership’s failure to ad­dress this crisis of confidence remarkable, nonetheless.

The reactive approach—to do the politically expedient and “correct” at the expense of what is right—signals a decay in the backbone of military justice: due process of _? law. Principled leadership and a rededication to those prin- | ciples we support and defend are essential to correct our i

course and restore confidence in our ability to discipline our own. The system must operate to ensure that those who are guilty of misconduct can be punished fairly, not that those suspected will be punished absolutely.

Concern over the military’s ability to administer justice fairly to its own is not a new phenomenon. In 1949, Con­gress held hearings regarding proposed legislation to create a Uniform Code of Military Justice. Numerous wit­nesses told of the dangers in placing such enormous power in the hands of the military commander. A Navy veteran representing the New York County Lawyers’ Association, Committee on Military Affairs, was one of several who recommended the removal of the military commander’s control in the system. He stated, “It is not too much to ask that the citizen army of a democracy be given that fundamental fair play and assurance of justice which our country is trying to give to the rest of the world.”²

Concern over the impact of political correctness in the military justice system was addressed by another Navy veteran and a new member of Congress, Gerald R. Ford, Jr. He told the congressional subcommittee in 1949 that during his 46-month tour in the Navy he observed mem­bers of court-martial boards asking, “What does the Old Man want us to do?” He stated that these officers were not as concerned with the question of guilt or innocence as they were with “what the captain of the ship or the commanding officer of a station wanted done with the man.”³ The fear that military leaders would do what they thought was expected—rather than what they thought was right—was one important reason for enactment of the Uni­form Code of Military Justice.

The political pressure to achieve specific results cer­tainly was evident in the wake of the Tailhook scandal. Both women and men suffered at the hands of a politi­cized system and the media. The media theme was clear: Navy men stand accused of assaulting women at a con­vention and therefore they are guilty and must be pun­ished immediately. It should come as no surprise that the

media coverage was biased in report­ing this case. Most high-profile cases receive a similar treatment prior to a proper examination of the facts. But anyone who has been involved in the justice system knows it is never that easy to pass judgment on an individ­ual accused.

It was particularly difficult to sat­isfy the demand for “justice” in 1992. Elected officials, political challengers, and numerous organizations jumped on the bandwagon and raised the is-^[1] sues of discrimination and mistreat­ment of women in the military. The national media rushed to judgment about individuals accused of wrong­doing. The Senate held up promo­tions and transfers of naval officers until it was assured that neither the in­dividual officer nor any of his subor­dinates was present at the Las Vegas convention. If a naval officer was one of the thousands in attendance, he was considered guilty until proved innocent.

A female aviator complained of criminal conduct to her immediate superior, a flag officer. The admiral showed his own disrespect for the justice system by failing to take appropriate measures to respond to that complaint. He did not initiate an investigation. He did not explore the issue independently. He did not inquire further of the victim. This contempt for the process of fair administration of justice brought about a national inquiry into her complaint.

This assault and numerous other criminal acts were investigated, first by the Naval Investigative Service (NIS) | and the Naval Inspector General, and then by the De-^! partment of Defense Inspector General. Shortly after its release, the NIS investigation became suspect because of a perception that a statement describing the Secretary of the Navy’s attendance at the convention was covered up. ' A thorough review of this issue revealed no evidence of j : such a cover-up. Nonetheless, the DoD Inspector General assumed control of the criminal investigation.⁴

Service members have complained that those accused i faced pressure to cooperate.⁵ The due process of law im- ] poses restrictions to guard against undue pressure. For in- : stance, under policy set out by the Secretary of Defense, i no service member can be forced to take a polygraph ex- j amination and no adverse action may be taken based on j the refusal to do so.⁶ The policy also directs that intrusive 1 and irrelevant questions about personal beliefs and con- j i duct unrelated to the investigation are prohibited. But po-                                                                              I

litical pressure often encourages what due process of law          1

forbids.                                                                                                  i

Perhaps the ultimate irony occurred in September 1992, J one year after the Tailhook convention. The Acting Sec- ’ retary of the Navy, upon receiving a report from the j I Acting DoD Inspector General regarding the Navy in- ! t vestigations, quickly announced the retirement of two flag ,                                            ¹

officers and the reassignment of a third, as well as a com-;        1

prehensive overhaul of both the Naval Investigative Ser- ^: rt-1 vice and the Office of the Naval Inspector General.⁷ After es ; the press conference and subsequent massive media at- a tention, the Acting Secretary asked the affected admirals ut for their comments on the report. When he received their he version of events, the Acting Secretary recognized the flaws >at in the DoD report and quietly decided to take no further d- action regarding the publicly censured admirals.⁸

Political pressure apparently affected other personnel it-    actions as well. At the Tomcat Follies at Naval Air Sta-

2.      tion Miramar, a female member of Congress was the sub-

rs,     ject of obscene remarks. Shortly after the incident, sev-

id     eral career naval officers were relieved of command and

s- subjected to notoriety. Later, two officers were exoner- it- ated when permitted to tell their side of the story.⁹ he The naval aviation community was incensed by this en- nt ; tire process. Complaints of witch hunts and “McCarthy- g- ism” were heard from all corners of the naval community.

0-        Confidence in the Navy’s ability and desire to treat peo- rs pie fairly eroded, particularly among the junior personnel, n- This lack of confidence by military members and the pub- t- lie perception of unfair and inept military justice have the al potential to seriously impact morale and mission readiness, as These recent examples are not unique. The military jus­tice system regularly faces similar pressures in other emo-

er tionally charged cases, such as those involving rape, child id abuse, or national security. Such high-profile cases pre- ce sent the greatest challenges to a system designed to en­id sure fairness, not conviction, re

lis Due Process of Law ^{[2] 1}

Ultimately, military justice will live or die based on its adherence to fairness in the process of administering justice. The results will vary and the outcomes may be debated, but the credibility of—and confidence in—the military justice system depends on an absolute commit­ment to the process: respect and deference for every rule of law, every directive and regulation, by every member of the organization.

Naval officers routinely respect and depend on rigid procedural requirements. The standardized procedures employed in every warfare community ensure efficient, safe, and successful operations at sea. While the legal requirements of due process often impede government efficiency and interfere with expected results, the adversarial process ensures the fair administration of justice—which should be the desired outcome for any judicial proceeding.

At minimum, fundamental procedural due process con­sists of meaningful notice and an opportunity to be heard. In the military, it usually means much more. At court- martial, the accused enjoys not only the procedural pro­tections of the U.S. Constitution, but also those of the Uni­form Code of Military Justice, the Rules for Court-Martial, and the Military Rules of Evidence. At non-judicial pun­ishment proceedings, an individual’s rights are enumer­ated in the Manual for Courts-Martial and the JAG Man­ual. Even in administrative hearings, the service member is entitled to specific procedural protection. No matter what the forum, a service member is entitled to the right to tell his or her side of the story.

This issue should be on the front burner for every naval leader for two reasons. First, recent events have sent the wrong message to the fleet. Anyone on the deck plates knows full well that actions speak louder than words. Ser­vice members sense the pressure on leaders to act on po­litical consensus rather than on principled conviction. Gross departure from the established rules and procedures demonstrates an absence of loyalty and trust. Ultimately, the men and women in uniform receive the message that the system does not work fairly.

Second, the challenges to the system are bound to in­crease as social and political pressures continue to change the face of the military. Women soon will serve in more combat billets. The ban on homosexuals in the military may be lifted. These two changes alone are so emotion­ally charged that the military justice system is certain to face new challenges—and a greater pressure to achieve preordained results. The only fair and proper response will be to allow a strong military justice system to take its course. Every service member must have the opportunity to exercise his or her rights, just as vigorously as the gov­ernment interests will be represented. It is incumbent upon the naval leadership to ensure that this process is protected.

Naval leadership must take decisive steps to regain the confidence of the American people. Preventative mea­sures such as training in core values and the prevention of sexual harassment are positive steps toward this goal. The next step should be a commitment that every Amer­ican son or daughter who enters the naval service will be afforded the procedural protections designed to safeguard sailors in our all-volunteer Navy. As a starting point, the following measures should be taken by every naval leader, from the senior enlisted advisor at a Training Command to the executive officer of a destroyer and beyond.

Involved Leadership

Naval leaders must be aware of the resources avail­able and use them. Then, they must stay involved with the system and demand that all players be held account­able for their actions. A leader cannot turn over a matter for investigation and then forget about it. It is essential that the leader inquire into matters, assess the process at significant milestones, and focus attention on trouble areas as they are identified.

Once an investigation is in the hands of the naval leader, there is a fundamental obligation to ensure a full and fair inquiry into the truth. If an investigation is defi­cient, dedication and commitment to due process demand that a leader hold the investigators accountable and return the case to them for further action.

If disciplinary or administrative action is deemed ap­propriate, judge advocates should be involved, to ensure that the processing of the matter is legally correct. The military system parallels the civilian legal system in one very important respect: it is an adversarial system. A leader must communicate with both trial and defense counsel, to gauge the efficacy of the system. The naval community and naval leadership are best served when both sides of a legal issue are fully and fairly represented.

Unlawful command influence has always been the scourge of military justice; improper interference with the system by the military commander is prohibited. But the commander must remain involved enough to accomplish the lawful obligations within the military justice process. The commander walks a fine line between lawful exer­cise of power and prohibited command influence and must pay close attention to the rule of law, erring on the side of caution. A prudent approach to command decisions in the military justice environment will, by example, rein­force the importance of the process.

Communicate the Message

Naval leadership cannot permit an erosion of confidence in the military justice system. The message must be blasted to the fleet and to the nation that fairness is the hallmark of military justice. This message cannot be communicated by statistics on the number of assaults investigated or rapists convicted. It must be demonstrated through courage of conviction, not the number of convictions.

The message must state clearly that naval leadership is committed to due process of law. Every service mem­ber must be reassured that, regardless of the subject mat­ter, he or she will receive the process due—whether at non-judicial punishment proceedings, general court-mar­tial, an administrative discharge board, or a conscientious objector hearing. To avert this crisis of confidence, and to keep faith with naval personnel and mission readi­ness, naval leadership must heed today’s warning signals and recommit itself to the military justice system.

Such an approach enhances, not diminishes, the com­mander’s ability to deter wrongdoers. Swift and certain punishment for those found guilty of misconduct is an effective deterrent. Sailors who know of the captain’s resolve to punish drug users may think twice before using drugs. The naval commander must, with equal vigor, communicate the important messages of fairness and deterrence.

A sample command mission statement regarding mis­conduct might read:

>• If suspected, you will be fully and fairly investigated. >- If you deserve a trial or a non-judicial punishment pro­ceeding, you will get it—and it will be fair.

>■ If you are convicted fairly, you will be sentenced fairly, and the results will be published in the Plan of the Day. ► If you are thinking of violating the Uniform Code of Military Justice, be sure to read the Plan of the Day.

Public perception will not be turned around and the con­fidence of junior personnel will not be regained unless there is an honest and dedicated commitment to fairness. The future of the military justice system is in the hands of naval leadership. Whether you are the victim or the ac­cused, you deserve the due process of law. Every effort should be made by the government to investigate and pur­sue justice on behalf of the victim. At the same time, the accused must always be treated as innocent until proved guilty and afforded a full and fair opportunity in de­fense. This absolute commitment to the due process of law is the true commitment to quality and “correctness”—• which the military justice system demands, the Ameri­can people deserve, and naval officers have sworn to sup­port and defend.

'Gordon W. Prange, At Dawn We Slept (New York: Penguin Books, 1981), pp. 30-36.

²“Uniform Code of Military Justice: Hearings on H.R. 2498 Before a Subcom­mittee of the Committee on Armed Services, House of Representatives,” 81st Cong., 1st Sess., 640 (1949) (statement of Richard H. Weis, Chairman, Special Committee on Military Justice of the New York County Lawyers’ Association). ’Ibid., pp. 825-826 (statement of Honorable Gerald R. Ford, Jr., Member of Con­gress from the Fifth District of the State of Michigan).

"Patrick Pexton, “Two Admirals Ousted,” Navy Times, 5 October 1992, p. 3; CHINFO Washington DC 242300Z September 1992.

’“Marine Aviators Forced to Take Polygraphs,” Navy Times, 24 August 1992, p. 7; Melissa Healy, “Wide Range of Victims in Wake of Tailhook Scandal,” Los Angeles Times, 1 November 1992, p. 1.

⁶DoD Directive 5210.48.

⁷Pexton, supra.

⁸Melissa Healy, “No Further Punishment for [Two] Admirals,” Los Angeles Times, 27 October 1992, p. 7; Phyllis W. Jordan, “O’Keefe Faults Report on Tailhook," Norfolk Virginian-Pilot, 28 October 1992, p. 1.

‘'Barton Gellman, “Three are Cashiered in Navy Scandal,” Washington Post, 16 August 1992, p. A7; H.G. Reza, “Navy Reinstates [Two] Fliers Fired in Tomcat Follies,” Los Angeles Times, 16 August 1992, p. 1.

"’see Michigan v. Mosley, 423 U.S. 96 (1975).

"UCMJ, Article 37.

Lieutenant Commander Gallagher, a 1989 graduate of Villanova Law School and editor-in-chief of the Villanova Law Review, reported to the Naval Criminal Investigative Service in August 1992. His previous tours include communications officer and assistant navigator in the USS Briscoe (DD-977) and trial and defense counsel at Naval Legal Service Office, Groton.